Magistrate Judge Ajay Krishnan opened the October 7 hearing on WP Engine’s motion to sanction Automattic and Matt Mullenweg for spoliation of evidence with a tentative view: he was inclined to deny it. The account of the hearing comes from The Repository, which obtained the court’s audio recording and published its report on October 9. In Krishnan’s words: “At the end of the day, I think it starts off with some problematic behavior from Mr. Mullenweg, but I’m just not seeing the rest of the story that would get me to a finding of spoliation.”

Spoliation means destroying evidence relevant to a case or failing to preserve it. A tentative view is not a ruling. The minute entry records the motion as “Matter submitted; written order to follow,” and Krishnan would “try to get an order out shortly.” WP Engine is asking for adverse-inference jury instructions, limits on Mullenweg’s testimony and dismissal of all seven counterclaims brought by Automattic, Mullenweg, the WordPress Foundation and WooCommerce. Automattic’s position is that WP Engine “cannot identify one, not a message, not a conversation, not a counterparty.”

Key facts

  • The view: Krishnan set out his reasoning at the start of the hearing, before either side argued. A written disposition will follow.
  • Against WP Engine: Mullenweg’s sworn testimony that he used disappearing messages only with romantic partners is “unrebutted,” in the judge’s assessment.
  • For WP Engine: the part of the motion that “landed most cleanly,” for Krishnan, concerned an April 2025 assurance that “all reasonable steps” had been taken.
  • The calendar: no date is set for the decision, and the ten-day jury trial remains scheduled for October 19, 2027.
Automattic Is Not an Owner of the WordPress Marks It Asserted in Court, a Judge Rules

An April 2025 Letter Was WP Engine’s Best Point, in the Judge’s View

Krishnan singled out an April 2025 letter from Gibson Dunn, Automattic’s lawyers at the time. WP Engine’s hearing slides date it to April 3 and quote it: “We have taken all reasonable steps to preserve relevant documents in this case, including with respect to Signal, Telegram, and WhatsApp.” Mullenweg’s iPhone was imaged two weeks later, on April 17, and that image did not capture WhatsApp or Signal. Automattic’s brief attributes the gap to an iOS 18.4 update that the imaging software did not yet fully support. A full file-system image followed on March 16, 2026. WP Engine counts that as 20 months after the duty to preserve attached on July 19, 2024, a date its slides call undisputed.

Addressing WP Engine’s counsel, the judge put it this way: “I actually thought that the portion of your motion that landed most cleanly had to do with this type of representation,” which “suggests a little bit more than what was actually done.” Yury Kapgan of Quinn Emanuel, arguing for WP Engine, went further: “It’s not even just a little bit more. It was false.”

The judge also called Mullenweg’s September 2024 post on X “admittedly problematic.” In the post, he urged people sending him material from inside companies to use “a personal phone, Signal with disappearing messages, etc.”

What Weighed Against a Spoliation Finding

The rest of the record did not support a finding against Mullenweg, in Krishnan’s tentative view. He called Mullenweg’s sworn testimony that he had used disappearing messages only with romantic partners “unrebutted.” Messages that other people sent him with disappearing settings turned on would probably have vanished before any collection unless someone screenshotted each one as it arrived, which the judge described as “a pretty sticky problem that everybody has at all times.”

He also questioned why WP Engine had not flagged Mullenweg’s post specifically in its preservation demands: “I would be more sympathetic if you had raised this specific thing with them and said, ‘Look at what your CEO is doing and look at what he did, and those things need to be preserved,’ and they did nothing.” He added: “But this is a big case. There’s so much data.” Kapgan’s answer was that WP Engine’s September 23, 2024 preservation demand, sent two days after the post, referred to ephemeral messages.

For Automattic, Stephen Shackelford of Susman Godfrey argued that the motion rested on speculation: “There is no evidence that anything is missing.” Krishnan asked whether anyone had checked in April 2025 that disappearing messages were switched off on Mullenweg’s apps. Shackelford’s reply was “I don’t know the answer to that question,” although his earlier understanding, given to the court, was that the setting had been off “long before then.” The judge acknowledged that as a problem, noting that the earliest confirmation came from an October 2025 Zoom call in which Mullenweg shared his phone screen with an e-discovery vendor: “We don’t know prior to that.”

Automattic’s Board Put Matt Mullenweg on Paid Leave. He Still Leads the WordPress Project.

What WP Engine Wants, and Who Decides

WP Engine wants the court to treat it as “conclusively established” that Mullenweg used WhatsApp, Signal and Telegram for case-relevant communications from July 2024 to March 16, 2026 and that some of those messages are gone. It also asks that he be barred from testifying about the substance of those messages, his state of mind during the September 2024 events and his basis for the trademark enforcement, except as shown by produced documents, and it seeks its fees. Of the seven counterclaims it wants dismissed, three involve false advertising, false designation of origin or unfair competition, although the September 24 order on the motions to dismiss already dismissed the false advertising part of Count 2 with leave to amend. The same order left Automattic and Mullenweg unable to assert the four trademark counts in their own right.

How much of this a magistrate judge can decide is disputed. Automattic’s brief argues that the relief is dispositive in character and so outside his authority to “hear and determine,” while WP Engine’s reply argues that most of it is not and that the court “may proceed by report and recommendation as to any relief the Court deems dispositive.” The written disposition may therefore combine an order with a recommendation to District Judge Araceli Martínez-Olguín.

A transcript was filed on October 9, but under court policy it can be viewed only at the clerk’s office or bought from the transcriber until its release date. WP Engine lodged its 22-page slide deck from the hearing the same day. Neither changes the status of the motion, which remains under submission.

About the Data

Quotations from the October 7 hearing come from The Repository’s October 9 report, which was based on the court’s audio recording. The transcript is not yet publicly available. Krishnan’s view, set out before argument, was tentative and is not a ruling. The letter date and the 20-month count come from WP Engine’s hearing slides, the imaging history and the requested relief from the parties’ briefs, and the procedural record from the docket. CourtListener’s copy of the docket showed no written order at the time of writing.